Supreme Court reiterates hearsay rules in axe murderer trial

The Supreme Court of Canada has reiterated the rules around hearsay evidence in a trial relating to a murder with an axe on an Alberta First Nation. 

The 8-1 decision ordered a new trial in light of the trial judge’s reliance on hearsay evidence.

The case dates back to July 2020, when the accused Dylon Saddleback and friends were socializing at the Montana First Nation in Maskwacis, Alberta. Most of the group left to attend a nearby birthday party, leaving Saddleback alone with the victim, Joshua Dennehy, who was murdered. 

Saddleback fled when the RCMP arrived on the scene, but was later found with Dennehy’s blood on his shoes and clothing. A bloodied axe was discovered nearby. At trial, Saddleback argued there was a reasonable possibility that, sometime after the group had left for the birthday party, someone else had arrived at the trailer and killed Dennehy. 

A material issue at trial was whether Saddleback had the exclusive opportunity to kill Dennehy, so the time the group had left them alone was important to determine. Members of the group gave inconsistent evidence about when they left, but testified that Dennehy was on the phone and Saddleback was in the trailer when they were leaving.

Dennehy spent 10 to 20 minutes on the phone with his girlfriend between 10 and 10:30 p.m. She testified that he had called her to say he’d been “ditched” by his friends. She also said the line became distorted and she could hear shuffling, tussling and thudding sounds before the call ended.

The trial judge concluded Dennehy was alone with Saddleback when the murder occurred, and convicted the latter of second-degree murder.

An impermissible use of hearsay

The Alberta Court of Appeal quashed the conviction and ordered a new trial, determining the trial judge erred in relying on Dennehy’s out-of-court statement. It was deemed to be an impermissible use of hearsay evidence.

The majority of the Supreme Court of Canada dismissed the appeal and upheld the order for a new trial.

“Even if it were true that the out-of-court statement could have been relied on for a purpose other than establishing the truth of its contents or could have been admissible to prove the truth of its contents under a hearsay exception, the trial judge’s reasons, read in light of the trial record as a whole, are insufficient to allow an appellate court to infer or reconstruct an analysis supporting either basis,” Justice Michelle O’Bonsawin wrote for the majority.

She also noted that the Crown did not apply to use the curative proviso of the Criminal Code, meaning that, under the circumstances, a new trial is warranted.

O’Bonsawin reiterated the rules around hearsay evidence and its exceptions, making clear it “can only be admitted when the party tendering that evidence demonstrates on a balance of probabilities that it is necessary and sufficiently reliable.” A voir dire on the admissibility of said evidence is normally held, but was not in this case.

While there was a possibility that some use could have been made of the hearsay statement, the judge’s reasons did not reflect that. Meanwhile, the Crown “chose to ride the horse that this was not hearsay” for reasons O’Bonsawin rejected.

In her dissent, Justice Suzanne Côté said the trial judge did not rely on the hearsay evidence as truth, but rather used it as a reliability assessment within an interconnected web of witness testimony. She found it was consistent with other testimony that Dennehy had been on the phone when the rest of the group departed.

“This was an important conclusion to reach, given that witness reliability had been a live issue at trial,” Côté wrote. 

“Furthermore, it ties into the trial judge’s earlier conclusions that the evidence of various members of the group was reliable because it was consistent among the members.”

Confusion with circumstantial evidence

Tony Paisana, a partner with Peck and Company in Vancouver and a former chair of the CBA’s criminal justice section, says that while the ultimate judgment around hearsay was not necessarily novel, it did provide clarity that even inferential uses of it are still hearsay, which sometimes can be confused with circumstantial evidence.

“(Hearsay) is a statement being used for the fact that it was said as opposed to being used for the truth of its contents,” Paisana says.

“It confuses even the most experienced judges and lawyers because it can be quite nuanced. This is an example of eight taking one view and one taking the other.”

To that end, he says the decision provides a good example of when the distinction between circumstantial uses and hearsay uses of statements is different, and where that line is drawn.

“This is increasingly becoming common, because the Crown—at least in BC and other jurisdictions—has significantly expanded the use of and reliance on the concept of hearsay as circumstantial evidence or prior consistent statements as circumstantial evidence,” Paisana says.

“And they call it narrative as circumstantial evidence.”

But not everything someone says is circumstantial evidence unless and until you use it for the truth of its contents, he adds.

Justice O’Bonsawin’s was critical of the fact that the entirety of the trial judge’s oral reasoning fit into four transcribed pages, stating that “reasons this short in a murder case involving multiple forensic experts, and inconsistent witness testimony found not to be generally reliable on points of detail, are difficult to square with the goals of ensuring transparency in the adjudicative process and of satisfying observers that justice has been done.”

Paisana says that’s a reminder to players in the justice system that when dealing with a significant matter, parties expect the issues to be resolved in a way that is intelligible to the community at large.

Adam Weisberg, lead counsel and managing partner at Weisberg Law in Toronto, and president of the Criminal Lawyers’ Association, says this decision is an as-of-right appeal that restates the law as it stands.

“If a judge is going to rely on any out-of-court statement for the truth of its contents, such as hearing from the deceased, you need to go through the test and have a voir dire,” he says, noting the Crown in this case opted not to do that.